USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 3 > Part 18
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The Constitution thus submitted to the people was rejected by the decisive vote of 2083 yeas to 9972 nays, approximately only one sixth of those voting favoring it. This result was to a large extent brought about by the publication of a remark- able pamphlet called the "Essex Result," written by a young lawyer of Newburyport named Theophilus Parsons, later des- tined to become a great chief justice of the Massachusetts Supreme Court. This pamphlet was adopted by a convention of delegates from the towns of Essex County assembled at Treadwell's Tavern, April 29, 1778 in Ipswich, and adjourned May 12, 1778. It not only points out in detail the defects in the Constitution of 1778, but sets forth "the true princi- ples of government" upon which a Constitution should be founded.
THE ESSEX RESULT (1778)
The "Essex Result" starts with the enumeration of eight- een specific objections to the proposed Constitution. These objections go to the root of representative government and illustrate how profound was the grasp of the men of those times upon fundamental constitutional principles. One glar- ing defect in the instrument submitted was the absence of a Bill of Rights. It was accordingly voted by the Essex Con- vention "that a bill of rights, clearly ascertaining and defining
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the rights of conscience, and that security of person and prop- erty, which every member in the State hath a right to expect from the supreme power thereof, ought to be settled and established, previous to the ratification of any constitution for the state."
The chief reason, however, for the defeat of this Constitu- tion was the widespread belief that an organic instrument of government could emanate only from a convention consist- ing of delegates chosen for the sole purpose of framing such an instrument and not from a body of representatives who had other duties to perform.
Another fundamental objection to the proposed Constitu- tion upon which great stress was laid by Parsons throughout the pamphlet was the lack of a proper separation of the powers of government. "The executive power in any State," he said, "ought not to have any share or voice in the legisla- tive power in framing the laws." "The twenty-second article is exceptionable, because the supreme executive power is not preserved distinct from, and independent of, the supreme legislative power."
In addition to the specific objections to the various articles of the Constitution under consideration, the Essex pamphlet contains an exposition of fundamental principles, which not only had a marked influence on the deliberations which led up to the final adoption of a Constitution for Massachusetts two years later, but served as a model for guidance in the great debates of the Federal Constitutional Convention of 1787. The theory of popular government and natural rights is therein carefully expounded. Those rights which are alienable "may be parted with for an equivalent. Others are inalienable and inherent, and of that importance, that no equivalent can be received in exchange." As to the kind of government, "a republican form is the only one consonant to the feelings of the generous and brave Americans."
The legislative power must not only be independent, but to safeguard it further "it must not be trusted with one assem- bly." For "a single assembly is frequently influenced by the vices, follies, passions, and prejudices of an individual." It should be divided into two branches, one to represent the people at large, among whom "we shall find the greatest share of political honesty, probity and a regard to the interest of the
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whole;" the other branch to represent the property of the state, and to give a share in government to "gentlemen of education, fortune and leisure," among whom "we shall find the largest number of men, possessed of wisdom, learning, and a firmness and consistency of character." If each House has an equal voice, no law can be passed without the consent of a majority of "those members who hold a major part of the property," as well as a majority of the persons in the state. A Senate, furthermore, will be able to revise "crude and hasty determinations of the House."
Appeal is made for a strong executive, with power to nega- tive all laws, and a "privy council" to advise him. "Let him not choose them himself, for he might then if wickedly dis- posed, elect no persons who had integrity enough to control him by their advice. The house shall choose by ballot seven out of the Senate."
"Let the judges of the common law courts, of the admir- alty, and probate, and the register of probate, be appointed by the Governor and privy council; let the stipends of these judges be fixed; and let all those officers be removable only for misbehavior. Let the Senate be the judge of that mis- behavior, on impeachment of the house."
DOCTRINE OF SEPARATION OF POWERS
It was urged that the proposed Constitution was a confused mingling of the executive and legislative departments of gov- ernment. The teachings of Montesquieu had not been heeded. The Governor and Lieutenant Governor, for in- stance, were to be members of the Senate, the Governor, its presiding officer. Vacancies in the Senate were to be filled by the House. No veto power was given to the Governor. No provision was made for an Executive Council.
Throughout the pamphlet the doctrine of complete separa- tion of powers is emphasized. At this memorable meeting of the men of Essex, held nine years before the convention met which adopted the federal Constitution, the principles of checks and balances was clearly set forth. "These three pow- ers (executive, legislative and judicial) ought to be in differ- ent hands, and independent of one another, and so balanced, and each having that check upon the other, that their inde-
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THE CONVENTION CALLED
pendence shall be preserved." "Should the executive and legislative powers be united, mischiefs the most terrible would follow. . . . Should the executive and judicial powers be united, the subject would then have no permanent security of his person and property."
One other principle deserves mention, particularly in the light of the controversy which was two years later waged over Article III of the Declaration of Rights. The question of religion was an important one among the colonists. The proposed Constitution restricted the holding of political or judicial office to Protestants. In the "Essex Result" this in- hibition was condemned, for, as it stated, "the free exercise and enjoyment of religious worship is the natural and uncon- trollable right of every member of the state."
The exposition of fundamental principles presented in this pamphlet, which was printed and distributed throughout the State of Massachusetts and affected materially the course of political events, was a learned treatise on the science of government. It showed a keen insight into practical prob- lems which had been confronted in the ancient nations of Europe. Looking back now over a hundred and fifty years we cannot but be impressed by the political wisdom of Theophilus Parsons and the men of Essex County.
THE CONVENTION CALLED (1778-1779)
There was, however, continued demand, particularly from the western part of the state, for a special convention to form a Constitution. Thus, on August 26, 1778, a convention of delegates from eighteen towns was held at Pittsfield and a petition to this effect was sent to the General Court. If this appeal should not be granted, they said, they would petition the Committee of Safety, and if given no satisfaction by them, they suggested that "there are other States, which have Con- stitutions who will we doubt not, as bad as we are, gladly re- ceive us."
The rejection of the Constitution of 1778 and the conse- quent doubt of the House of Representatives as to "what are the sentiments of the major part of the good People of this State, as to the expediency of now proceeding to form a new Constitution of Government," prompted the House to resolve,
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on February 19, 1779, that the Selectmen of the several towns cause the inhabitants thereof duly qualified to vote for repre- sentatives to meet together on or before the last Wednesday of May, 1779, to determine two questions : first, "Whether they choose, at this time, to have a new Constitution or Form of Government made"; and second, whether, if the vote on the first question is in the affirmative, "they will empower their Representatives for the next year to vote for the calling a State Convention, for the sole purpose of forming a new Constitution." The Council concurred in this resolve on the day following.
Although nearly half the towns neglected to answer, a majority of those towns voting on both questions was in the affirmative. Essex, Barnstable and the Maine counties were opposed ; but Boston and the three western counties of Worces- ter, Hampshire, and Berkshire were strongly in favor. The General Court accordingly on June 17, 1779, passed a resolve directing "the Selectmen of the several Towns and Places within this State" to call a meeting of their respective Towns to elect delegates to a convention to be held at Cambridge on September 1 next, at which meeting "every Freeman, Inhab- itant of such town, who is twenty-one years of age, shall have a right to vote."
The resolve further recommended that the delegates be in- structed to submit the Constitution which they may agree upon to the male inhabitants of each town, "being free and twenty- one years of age," to be approved or disapproved by them. It will be observed that the franchise both for the selection of delegates and for ratification of any Constitution sub- mitted was wider than for the election of representatives to the House, for in the latter case a property qualification was required. The constitution, on the other hand, was to be adopted or rejected by the suffrage of all the adult male in- habitants.
June 17 is an important date in the history of Massachu- setts. On June 17, 1774, the first step for self-government was taken at Salem; on June 17, 1775, the Battle of Bunker Hill was fought; and on June 17, 1779, was put into effect the beginning of the process for the establishment of a gen- uine and permanent State government. It took a year and a quarter after the last date to complete the result; so that over
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PRELIMINARIES OF THE CONVENTION
six years elapsed between the preliminary step and the final accomplishment.
PRELIMINARIES OF THE CONVENTION (1779)
The Convention duly assembled on September 1, 1779, at the old Meeting House of the First Church in Cambridge, the site being now marked by a tablet in Harvard Square. On the opening day 293 delegates presented their credentials. At the second session, on October 28, 1779, after adjournment, 19 others were added, so that the total number was 312. They included the first citizens of Massachusetts, in fact, all the leaders who were not in the military service or in some other governmental capacity were present. Among them were James Bowdoin of Boston, who was elected president of the Conven- tion; John Adams of Braintree; Samuel Adams, John Han- cock, Samuel Otis, and John Lowell, of Boston; Increase Sumner of Roxbury; John Pickering, William Pickman, and Henry Higginson of Salem; Theophilus Parsons of Newbury- port; George Cabot of Beverly; Levi Lincoln of Worcester; Caleb Strong of Northampton; Judge William Cushing of Scituate ; Robert Treat Paine of Taunton; James Sullivan of Groton; Nathaniel Gorham of Charlestown; and others of ability and distinction. It was a gathering of eminent men.
After the acceptance of credentials and the adoption of the rules of the Convention prepared by a committee composed of Pickering, Gorham, Sullivan, Goodman and Dawes, a com- mittee of thirty-one, four at large and twenty-seven named by the county delegations, was chosen to draft "a Declaration of Rights and the Form of a Constitution," to be laid before the whole body. On September 7, the Convention adjourned to give this committee time to prepare its report. The gen- eral committee delegated its duties to a subcommittee of three consisting of James Bowdoin, Samuel Adams and John Adams. This subcommittee entrusted the task entirely to John Adams.
John Adams (as will be seen in the chapter describing his life and services) was then at the height of his powers and recognized as a leading authority on the science of govern- ment. He had taken a prominent part in the provincial gov- ernment, in the Continental Congress, and as minister to
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France. His advice had been sought in the framing of other state constitutions. He was highly equipped as a lawyer, had had much experience as a practical politician, and was possessed of a clear legal style.
THE DECLARATION OF RIGHTS (OCTOBER 28 - NOVEMBER 11, 1779)
The Adams draft of the Constitution was presented to the convention when it reconvened on October 28, 1779. At this session, which lasted only fifteen days, the discussion was largely on the Declaration of Rights, and particularly on Ar- ticle III thereof which dealt with religion. This article was not the work of John Adams. He wrote to a friend several years later : "The article respecting religion was the only ar- ticle which I omitted to draw." It provoked such an exten- sive debate that finally it was referred to a special committee of seven composed of Theophilus Parsons, Robert Treat Paine, Samuel Adams, Caleb Strong, Timothy Danielson, a leading citizen of western Massachusetts, Reverend David Sanford, of the Second Congregational Church in Medway, and Rev. Noah Alden, of the First Baptist Church in Belling- ham. Three days later this committee reported a new draft. November 10, the convention, after having defeated a motion to strike out the whole article, formally adopted this report, with only slight changes.
Twenty-seven of the original thirty-one articles of the Declaration of Rights were accepted at this session, some of these only after discussion and alteration. Final action on the remaining articles was not taken. The Declaration of Rights as adopted contains thirty articles rather than thirty-one, due to the fact that Article XIV of the original draft is incorpo- rated in Article XII of the final draft.
On November 11, 1779, the attendance having fallen to one third of its members, the convention adjourned to January 5, 1780. John Adams sailed on a mission to France immediately after adjournment, and did not return until after the Consti- tution had been adopted. Those remaining until the end of this session directed the president to publish in the news- papers a notice enjoining upon the members, "from its neces- sity and importance, a constant and general attendance ac- cordingly."
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METHOD OF RATIFICATION
BODY OF THE CONSTITUTION (JANUARY 5 - MARCH 2, 1780)
The winter of 1780 was unusually severe. The cold was so intense and the snow so deep that travelling was "excessive bad." Hence only a few members were present on the open- ing day. It was not until January 27, 1780, by vote of forty- two out of sixty members, that the convention proceeded to business. Only forty-seven towns were at that time repre- sented, thirty-three of them in the counties of Suffolk, Essex and Middlesex. The three Maine counties were not repre- sented; neither were the counties of Plymouth, Barnstable, Nantucket and Dukes.
From that day until March 2, 1780 the Journal of the Con- vention is filled with numerous motions, votes and reports of subcommittees on the various clauses of the Constitution; and it is evident that the few members that did attend considered the substance and the phraseology of the different provisions with minute care. The highest vote recorded in the Journal was 82, on February 16.
METHOD OF RATIFICATION (1780)
On March 2, 1780, after a committee of five had reported recommending a method of securing the ratification of the constitution by the people, it was resolved that the convention adjourn to the first Wednesday in June next; that 1800 copies of the Frame of Government which shall be agreed upon be printed and be sent to the selectmen of each town and the committees of each plantation, to be laid before the inhabi- tants thereof ; and "if the major part of said Inhabitants dis- approve of any particular part of the same, that they be de- sired to state their objections distinctly and the reasons therefor ;" that these votes be sent back to the convention for tabulation "in order that the said convention, at the adjourn- ment, may collect the general sense of their constituents on the several parts of the proposed Constitution. And if there doth not appear to be two thirds of their constituents in favour thereof, that the convention may alter it in such man- ner as that it may be agreeable to the sentiments of two thirds of the voters throughout the state."
The general purpose of this rather involved method of rati- fication was to give the people not solely the opportunity to
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vote on the Constitution as a whole, for that might have meant rejection as it did in 1778; but the right to discuss every separate article and state their objections, if any, to each one. This opportunity to air their views gave to the towns, which were jealous of authority and reluctant to part with any pre- rogatives, the feeling of direct participation in the formation of their own instrument of government, and turned what otherwise might have been a hostile attitude into a real desire to evolve something constructive. The authority requested by the convention in this resolve of March 2, 1780, was not simply to put the Constitution into effect if two-thirds of the people voted in the affirmative ; but to amend it in accordance with the designated wishes of two-thirds of the people and declare the Constitution thus amended to be in effect without further approval. When we consider the variety of objec- tions which were registered, many of them involved and with- out skill or grace in phraseology, susceptible to different in- terpretations, some of them fantastic and unintelligible, to thus delegate to their representatives the power to reduce the text to a concrete final form without resubmission to the people was a large concession on the part of the towns.
THE ADDRESS OF THE CONVENTION (1780)
With a Form of Constitution thus agreed to by the dele- gates, the problem was to acquaint the people with its pro- visions and persuade them either to ratify it as a whole or suggest alterations to it. The Constitution of 1778 having been decisively rejected, the delegates were under no misap- prehension as to the difficulties of this task. Accordingly a committee of seven, of which Samuel Adams, Parsons, Lowell and Sullivan were the most prominent members, was authorized to prepare an Address of the Convention to their Constituents. This was considered carefully, revised in con- vention, and the delegates voted to have it signed by President Bowdoin and distributed with the Form of Constitution. "Having had your Appointment and Instruction", they said in the Address, "we have undertaken the arduous Task of pre- paring a Civil Constitution for the People of the Massachu- setts-Bay ; and we now submit it to your candid Consideration. It is your Interest to revise it with the greatest Care and Cir-
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EDWIN COOLIDGE Mot Od
CJIGOVERNOR BOWDOIN
Original, by Robert Feke, Bowdoin College Courtesy of Society for the Preservation of New England Antiquities GOVERNOR JAMES BOWDOIN
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RESPONSE OF THE TOWNS
cumspection, and is your undoubted Right, either to propose such Alterations and Amendments as you shall judge proper, or, to give it your own Sanction in its present Form, or, totally to reject it." The delegates realized only too well that there would be formidable opposition to any proposed consti- tution. They stated with complete frankness that disagree- ments were inevitable, but they proceeded to make an argu- ment and an appeal alike cogent and on a high plane. They conceded that it is not the lot of mankind to agree to a per- fect system of government, but they urged the yielding of individual opinions and smaller considerations to essential principles and the general good. The tenor of the Address merited the observation in the report of the town of Medway that it was "not onely Polite but very Plosible." "It is," says Morison, "a clear, succinct exposition of the same school of political thought that produced the Essex Result, the Federal Constitution, and the Federalist."
In addition to the distribution of the eighteen hundred copies of the Constitution and the Address to the Towns, and explanations thereof by the delegates to their own constit- uents, apparently little effort was made to bring this subject matter to the attention of the people. Strangely enough, ac- cording to Prof. Morison, not one of the six newspapers then published in Massachusetts (The Boston Gascette, Independent Chronicle, Continental Journal, Independent Ledger, and Evening Post, and the Worcester Massachusetts Spy) pub- lished the text of the Constitution. "The only discussion of it in their columns was a series of controversial articles be- tween two members of the Convention, largely relating to Article III, a few letters from the Rev. Isaac Backus and Dr. William Gordon, and a few reprints of town returns."
RESPONSE OF THE TOWNS (1780)
In spite of this inadequate publicity, the people in their various town meetings showed an unusual interest in the ques- tions of government raised and a wide range of political thought. In the reports returned, the vigor and breadth of their views were striking. That they gave such attention to their form of government is all the more significant when we consider that the spring of the year 1780 found the col-
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onists in desperate straits. The expedition of 1779, elsewhere described, to drive the enemy out of Maine resulted in complete disaster. The people were loaded down with heavy debts. Congress was practically bankrupt. Our French allies had not yet arrived. Washington was at a standstill on the Hudson, begging for men, clothing and money, his fragmentary army suffering from sickness and lack of supplies. The Tories were acquiring recruits ; the enthusiasm of the patriots was at a low ebb.
In spite of this dark condition of affairs, the towns re- sponded to the request for comments on the Constitution to a surprising extent. The Massachusetts Archives contain re- turns from one hundred eighty-eight towns, and there were undoubtedly others. They differ greatly in form and sub- stance, ranging from a brief tabulation of the votes cast to a lengthy exposition on general political principles. "Defec- tive in grammar and crude in expression," says Morison, "these returns show a grasp of the fundamental principles of government, an insight into the particular problems of Massa- chusetts, a critical and constructive faculty, that compare favorably with the work of the famous leaders of revolution- ary thought. They anticipated, in fact, most of the amend- ments that were made to the Constitution of Massachusetts during the next seventy-five years." Only a few towns that made returns voted on the Constitution as a whole.
The method of taking action varied. In Gloucester, for in- stance, "the Constitution was read, and those for accepting were desired to walk around the Meeting House to the East- ward and those against to walk the other way-48 walked to Eastward, none the other way." In general, the western counties responded better than the eastern, and those of Maine least of all. Yet in Boston there were 887 votes out of a total population of about ten thousand. This must have been a large proportion of those then possessed of the suffrage. It was the highest numerically, and almost the highest proportionally, in the State. In Biddeford, Maine, only 10 out of a population of 1,006 voted, yet at the foot of the return is the hopeful statement, "Ten men may save the City." The total number voting was about 16,000 out of an estimated population of 360,000 of whom not more than 25,000 could then have had the right to vote.
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THE ARTICLE ON RELIGION
THE ARTICLE ON RELIGION (1780)
Of the great variety of objections to the Constitution, those made to Article III of the Declaration of Rights, dealing with religion, were the most divergent and the most severe. This article had provoked much discussion in the convention.
In substance it provides that the legislature shall authorize and require the several towns, parishes, precincts, and other bodies-politic, or religious societies, to raise the necessary funds "for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality ;"
"That the legislature is authorized to enjoin upon all an attendance upon the instructions of such public teachers ;
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